Twelve federal appeals courts have said that the FBI acted in good faith when they used a Virginia warrant to search thousands of computers around the world in the controversial Playpen child pornography case. Our office last week asked for a special hearing in the Second Circuit to challenge that conclusion, with a series of simple arguments that, somehow, the appeals courts keep missing – including a Second Circuit panel that ruled on the warrant last month.
The logic is simple and the stakes are high.
Here is what happened: in 2015, the FBI shut down a child porn website called Playpen that was operating on the Dark Web. It had tens of thousands of users. The government immediately made a copy of the server and brought that copy to Virginia.
They asked Virginia Magistrate Judge Theresa Buchanan for a search warrant that would explicitly permit them to operate the site but add malware to it which would secretly take over any computer that tried to access the child pornography.
The malware would grab information from the user’s computer, including the IP address, and send it back to FBI. The warrant application asked for permission to search “activating computers — wherever found.” But the warrant itself said that it was based on an application for a “search of the following property located in the Eastern District of Virginia” and defines the property as the computers of “any user or administrator” who accesses Playpen. The warrant does not say anything about searching thousands of computers throughout the world or “wherever found.”
And of course it couldn’t. That sort of warrant would be illegal under the Fourth Amendment of the United States Constitution. As the Supreme Court explained in Berger v. New York, 388 U.S. 41 (1967), our American forefathers fought and died to get out from under the yoke of “general warrants” and “writs of assistance” issued by British colonial courts — that’s why we have the Fourth Amendment, which requires that searches be reasonable and warrants “particularly describe the place to be searched.” The Playpen warrant does not do that. Anyone who made it through elementary school civics could see that the warrant was invalid on its face because it did not identify a particular place to search. A reasonably well-prepared Justice Department lawyer or an FBI agent involved in prior computer investigations would also know that Rule 41 of the Federal Rules of Criminal Procedure (at the time) and the Federal Magistrates Act limit a magistrate judge’s warrant jurisdiction to the district in which she sits — in this case, Virginia.
But wait, there’s more. The FBI did not use the warrant to search in Virginia. They searched around the world. Including in New York. That’s where our client comes in: after breaking into his computer, FBI agents got a warrant to search his home in New York City and prosecuted him for “receiving” child pornography, five year mandatory minimum sentence. The warrant did not say anything about searching outside of Virginia. The request to search computers “wherever located” was denied. But the FBI searched computers in New York anyway.
And here is the worst of it: every appeals court that has considered the question has let them get away with it. No court has found that the warrant was actually valid, but the circuit courts of appeals have all said that the evidence found could be used against the people whose computers were hacked because the FBI and prosecutors acted in “good faith.”
That seems almost impossible, which is why we are challenging it even though the issue appears to have been decided already in the Second Circuit, which includes New York. Our petition for initial hearing en banc points out that the case led to thousands of searches and hundreds of prosecutions. It has generated significant attention among academics and in the press. It raises fundamental questions about what the Fourth Amendment means and, more importantly, what happens when the government violates it.
We hope that the full Second Circuit will reverse the ill-considered opinion of the panel that ruled in August.
If not, we fully intend to seek to have the issue heard in the United States Supreme Court.